Exhibit 10.8
PURCHASE AGREEMENT
RELATING TO
000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX
Dated as of December 15, 2005
1. Parties. The
parties to this Purchase Agreement are:
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x. XXXX
LEASING, a Minnesota general partnership (the “Seller”); and
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This Agreement sometimes
refers to Seller and Buyer individually as a “Party” and collectively as the “Parties”.
2. Property. The
real property that is the subject of this Agreement is legally described as follows:
consisting of approximately 3.76 acres of land and an approximately 32,000
square foot building, commonly known as Xxxx Stamping in Monticello, Minnesota, (the “Property”). The term
“Property”, as used in this Agreement shall include all improvements and fixtures located on the Property and all
hereditaments and appurtenances to the Property. The Parties do not contemplate the conveyance of any personal property pursuant
to this Agreement, except for the warehouse racking.
3. Purchase and Sale. Seller
agrees to sell the Property to Buyer pursuant to the terms of this Agreement, and Buyer agrees to purchase the Property from
Seller pursuant to the terms of this Agreement.
4. Purchase Price. The
purchase price for the Property is $1,150,000.00 (the “Purchase Price”).
The Purchase Price will be
allocated as follows:
| Land |
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$ 588,000.00 |
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| Buildings | |
562,000.00 |
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| TOTAL: | |
$1,150,000.00 |
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5. Xxxxxxx
Money. Upon Seller’s execution of this Agreement Buyer shall deposit xxxxxxx money in the amount of
$10,000.00 (the “Xxxxxxx Money”) with Xxxxx Xxxxxx of North Star Partners. Kummel shall disburse the Xxxxxxx
Money pursuant to the terms of this Agreement. Xxxxxxx Money in the possession of Kummel shall remain the property of Buyer unless
disbursed to Seller pursuant to the terms of this Agreement. Upon Seller’s full performance of Seller’s obligations
under this Agreement, Kummel shall deliver the Xxxxxxx Money to Seller, and Seller must apply the Xxxxxxx Money towards payment of
the Purchase Price pursuant to the provisions of Section 6.
6. Payment
Terms. Upon Seller’s full performance of Seller’s obligations under this Agreement, and waiver
of all of Buyer’s Contingencies under this Agreement Buyer shall:
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a. Direct
Title to tender the Xxxxxxx Money to Seller in cash or certified funds.
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b. Tender
the balance of the Purchase Price to Seller in cash, certified funds or wire transferred funds.
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7. Conveyance
Terms. Upon Buyer’s full performance of Buyer’s obligations under this Agreement, Seller shall
execute and deliver to Buyer a Warranty Deed conveying fee title to the Property to Buyer subject only to:
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a. Building,
zoning and subdivision statutes, laws, ordinances and regulations;
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b. Reservations
of minerals or of mineral rights in favor of the state in which the Property is located, if any;
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c. The
lien of real estate taxes not yet due and payable; and (hereinafter, collectively, the “Permitted Encumbrances”).
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8. Possession. Seller
shall deliver possession of the Property to Buyer on the Date of Closing, as defined in Section 9. If in Seller’s name,
Seller shall be responsible for transferring electric, natural gas and sewer and water utilities from Seller’s name to
Buyer’s name.
9. Closing. The
closing will be handled by a closing company of Buyer’s choice (“Title”) located within a 20 mile radius of the
Property. The closing shall take place on or before March 1, 2006 at Title’s office or via mail; such later date as the
Parties may establish pursuant to the provisions of Sections 11 and 16 below; or such other date as the Parties may establish
pursuant to a written amendment to this purchase agreement (the “Date of Closing”), at which time:
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(i) if,
pursuant to Section 11, Seller has elected to attempt to make title to the Property marketable, execute and/or deliver to Title,
with copies to Buyer, and make arrangements to have Title record or file in the appropriate county land records any documents
necessary to establish the marketability of Seller’s title to the Property, subject only to Permitted Encumbrances;
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(ii) execute
and deliver to Buyer the deed described in Section 7 above;
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(iii) execute
and deliver to Buyer and Title an affidavit regarding partnership evidencing the absence of bankruptcies, judgments or tax liens
involving Seller and evidencing the absence of mechanic’s lien rights affecting the Property as a result of Seller’s
acts or omissions, unrecorded interests affecting the Property, persons in possession of the Property and known encroachments or
boundary line questions affecting the Property, except as disclosed to Buyer herein;
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(iv) deliver
to Buyer appropriate partnership resolutions authorizing Seller’s conveyance of the Property to Buyer and identifying the
individuals authorized to execute the deed described in Section 7 and any other documents required hereunder;
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(v) execute
and deliver to Buyer a non-foreign affidavit in recordable form containing such information as is required under IRS Section
1445(b)(2) and any regulations relating thereto;
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(vi) execute
and deliver to Title, Buyer or other appropriate party appropriate Federal Income Tax Reporting Forms;
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(vii) If
required by the state in which the Property is located, execute and deliver to Title, with a copy to Buyer, a completed Well
Disclosure Certificate or similar document for said state;
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(viii) execute
and deliver to Title, with copies to Buyer, and make arrangements to have the closing agent record or file in the appropriate
county land records, any affidavits required by the state in which the Property is located, if required;
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(ix) deliver
to Buyer the Date Down Certificate described in Section 13;
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(x) pay
or provide evidence of payment of the following: the cost of providing the Title Commitment as defined in Section 10; the State
Deed Tax due upon the execution of the conveyance described in Section 7; the fees due upon the recording any documents necessary
to place record title in the condition provided for in this Agreement; real estate taxes and special assessments pursuant to the
provisions of Section 12; and one-half of Title’s fee to conduct the closing of this transaction.
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(i) Tender
the Purchase Price to Seller pursuant to the provisions of Section 6 above;
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(ii) Pay
or provide evidence of payment of the following: the premium for Buyer’s owner’s policy of title insurance, if any; the
fees due upon the recording the deed from Seller to Buyer; and one-half of Title’s fee to conduct the closing of this
transaction.
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10. Evidence
of Title. Within ten (10) days of the date of this Agreement, Seller shall, at Seller’s sole cost
and expense, deliver the following to Buyer:
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a. A
commitment for an owner’s policy of title insurance on a current ALTA form issued by a licensed insurer as selected by Buyer
(the “Title Commitment”). Seller shall be responsible for the title search and exam costs related to the commitment.
Buyer shall be responsible for all additional costs related to issuance of the policy including all premium costs.
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(“Evidence of Title”).
11. Examination
of Title. Within ten (10) days of Buyer’s receipt of the last item of the Evidence of Title, Buyer
may give Seller written notice of alleged defect(s) in the marketability of Seller’s actual and record title to the Property
and request that Seller make Seller’s title marketable (“Objections”). The Permitted Encumbrances may not serve as
a basis for an Objection. Any defects in the marketability of Seller’s title to the Property which Buyer does not object to,
in writing, within the time period set forth above, shall be deemed Permitted Encumbrances. Within three (3) days of Seller’s
receipt of Buyer’s Objection(s), Seller must notify Buyer, in writing, if Seller will attempt to make Seller’s title to
the Property marketable. If Seller notifies Buyer that Seller will attempt to make Seller’s title to the Property marketable,
Seller must use Seller’s reasonable efforts to do so as promptly as reasonably possible. If Seller notifies Buyer that Seller
will attempt to make Seller’s title to the Property marketable, Seller shall have up to thirty (30) days from Seller’s
receipt of Buyer’s Objections to do so, the Date of Closing shall be postponed and the new Date of Closing shall be
established pursuant to the provisions of this Section 11. If Seller makes Seller’s title marketable within thirty (30) day
period, Seller shall promptly notify Buyer, in writing, and the Parties shall close pursuant to the terms of the Agreement. The
new “Date of Closing” shall be the date ten (10) days from the date Seller notifies Buyer that Seller’s title is
marketable. If Seller notifies Buyer that Seller does not intend to make Seller’s title marketable or if Seller notifies
Buyer that Seller intends to make Seller’s title marketable but, not withstanding Seller’s use of Seller’s
reasonable efforts, Seller is unable to do so within thirty (30) days from Seller’s receipt of Buyer’s Objections, Buyer
may either:
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a. terminate
this Agreement upon written notice to Seller;
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b. notify
Seller that Buyer waives Buyer’s Objections. If Buyer waives Buyer’s Objections, the matters giving rise to such
Objections shall be deemed a Permitted Encumbrance and the Parties shall fully perform their obligations under this Agreement. The
Parties shall establish a new Date of Closing by mutual agreement, but if the Parties cannot establish a new Date of Closing by
mutual agreement, the Date of Closing shall be the date ten (10) days from the effective date of Buyer’s notice to Seller
that Buyer waives Buyer’s Objections.
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If Buyer does not notify Seller of Buyer’s election to terminate this
Agreement pursuant to subsection (a) above or waive Buyer’s Objections pursuant to subsection (b) above within ten (10) days
of the expiration of the thirty (30) day period provided for above, this Agreement shall automatically terminate, Buyer shall
deliver an executed and recordable quit claim deed to the Property to Seller and Seller shall instruct the Xxxxxxx Money Agent to
return the Xxxxxxx Money together with any interest earned thereon to Buyer.
12. Real
Estate Taxes and Special Assessments. The Parties shall pay the real estate taxes (which term, as used in
this Agreement, shall include any service charges assessed against real property on an annual basis) and special assessments as
follows:
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a. On
or before the Date of Closing, Seller shall pay the real estate taxes, special assessments and any penalties and interest thereon
due and payable with respect to the Property for all years prior to the year of Closing;
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b. Buyer
and Seller shall pro rate the real estate taxes and all installments of special assessments levied against the Property which are
due and payable in the year of Closing on a per-diem basis using a calendar year, to the Date of Closing. At Closing, Seller shall
pay to Buyer an amount equal to Seller’s pro-rata share of the real estate taxes for the year of Closing. The Parties shall
pro-rate the real estate taxes using current year real estate tax information, if available, and, if current year tax information
is not available, using the amount of the real estate taxes due and payable in the year immediately preceding the year of closing.
Any such pro-ration shall be final and no subsequent adjustments, refunds or additional payments shall be made.
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13. Buyer’s
Representations. Buyer represents and warrants to Seller that Buyer has the requisite power and authority
to enter into this Agreement and all documents signed by Buyer. All documents signed by Buyer will have been duly authorized by
all necessary action on Buyer’s part and will have been duly executed and delivered. Buyer’s execution, delivery, and
performance of Buyer’s obligations does not conflict with or result in violation of any contract or agreement, or any
judgment, order, or decree of any court or arbiter to which Buyer is a party. Buyer’s documents are Buyer’s valid and
binding obligations, and are enforceable in accordance with their terms.
14. Seller’s
Representations. Seller makes the following representations to Buyer:
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a. The
individuals executing this Agreement on behalf of Seller represent to Buyer that they have the legal and partnership authority to
execute this Agreement on
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behalf of Seller and to bind Seller. Seller represents to Buyer
that Seller has the legal and partnership authority to enter into this Agreement and to sell the Property. |
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b. Seller
represents that Seller is not a foreign person, foreign partnership, foreign trust or foreign estate as those terms are defined in
Section 1445 of the Internal Revenue Code.
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c. Seller
represents that, on or before the Date of Closing, all labor or materials furnished to the Property prior to the Date of Closing
except for labor or materials furnished to the Property pursuant to a contract between Buyer and the individual or entity
providing the labor or materials, will be paid for.
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d. Seller
represents that, to Seller’s actual knowledge, there are no mortgages, contracts, purchase agreements, options, leases,
easements or other agreements or interest relating to the Property that are not recorded.
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e. Seller
represents that, to Seller’s actual knowledge, there are no persons in possession of any portion of the Property other than
Seller, except Tenant.
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f. Seller
represents that, to Seller’s actual knowledge, Seller is the fee owner of the Property subject only to Permitted
Encumbrances, except as otherwise disclosed herein.
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h. Seller
represents that Seller has not received notice of any new public improvement project(s), the cost of which a governmental entity
may assess against the Property, except as otherwise disclosed herein.
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i. Seller
represents that, to Seller’s actual knowledge, there is no action, litigation, governmental investigation, condemnation or
administrative proceeding of any kind pending against Seller involving any portion of Property, and no third party has threatened
Seller with commencement of any such action, litigation, investigation, condemnation or administrative proceeding, except as
otherwise disclosed herein.
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j. Seller
represents that there are no xxxxx located on the Property.
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k. Seller
represents that there is one 55-gallon underground storage tank located under the plant floor for runoff.
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1. Seller
represents that there are no private sewage treatment systems located on the Property.
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m. Seller
represents that Seller is not aware of any methamphetamine production that has occurred on the Property.
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n. Seller
is not in violation of, has not violated, in connection with its ownership, use, maintenance or operation of the Property, any
applicable federal, state,
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county or local statutes, laws, regulations, rules, ordinance,
codes, standards, orders, licenses and permits of any governmental authorities relating to environmental matters (being
hereinafter collectively referred to as the (“Environmental Laws”), including by way of illustration and not by way of
limitation, the Clean Air Act, the federal Water Pollution Control Act of 1972, the Resource Conservation and Recovery Act of
1976, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Toxic Substances Control Act, or the
Minnesota Environmental Response and Liability Act (including any amendments or extensions thereof and any rules, regulations,
standards or guidelines, issued pursuant to any of said Environmental Laws). |
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o. Seller
makes no representations about the condition of the roof of the building. Buyer may inspect and make a determination within thirty
(30) days of execution as noted in Section 16(d) below.
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p. Seller
represents that to the best of its knowledge the heating, plumbing, air conditioning, electrical and wiring systems and related
equipment used and located on the property are in good condition and working order at the time of execution of this Agreement.
Seller makes no representations about the future condition of these systems.
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The warranties set forth
above shall survive the closing of this transaction and Seller’s delivery of a deed to Buyer for a period of twelve (12)
months. At closing, an authorized representative of Seller shall execute and deliver to Buyer a certificate of Seller certifying
that the representations contained in this Section 13 are true as of the Date of Closing or, if such representations are no longer
true, describing, in detail, the reasons why the representations are no longer true (the “Date Down Certificate”).
15. Buyer’s
Access to the Property Prior to Closing. Subject to the rights of Tenant, Buyer shall have the right to
go upon the Property to conduct an inspection thereof and to perform tests thereon, including but not limited to soil and
environmental testing. Buyer shall also have the right to examine any plans, studies, reports, surveys, leases, service contracts
and other materials with respect to the Property in the possession or control of Seller. Buyer agrees to indemnify and defend
Seller from and to hold Seller harmless against any and all claims, causes of action or expenses, including attorney’s fees,
relating to or arising from Buyer’s inspection of the Property prior to the Date of Closing. Buyer agrees to repair any
damage to the Property caused by such inspections and to return the Property to substantially the same condition as existed prior
to Buyer’s inspection.
16. Contingencies. Buyer’s
obligations under this Agreement are contingent on:
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a. Satisfactory
physical, structural and environmental reports to be obtained by Buyer. This contingency must be exercised within thirty (30) days
after execution of this Agreement, as provided for below.
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b. Satisfactory
evidence that all required governmental approvals have been granted for the Buyer’s intended use of the Property and that the
Land is zoned to permit
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such use. This contingency must be exercised within thirty (30)
days after execution of this Agreement, as provided for below. |
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c. Seller’s
delivery of good and marketable title to Buyer as provided for in Sections 10 & 11 hereof.
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d. Buyer
may inspect and determine whether the condition of the building, roof and heating, plumbing, air conditioning, electrical and
wiring systems are acceptable to Buyer. This contingency must be exercised within thirty (30) days of execution of this Agreement,
as provided for below.
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e. Notwithstanding
anything contained in this Agreement to the contrary, in the event Buyer’s investigation under the above Subsections 16(a),
(b), (c) and (d) discloses conditions that are not satisfactory to Buyer, Buyer shall have the right to terminate this Agreement
provided written notice of termination is delivered to Seller within the time allowed, and the Xxxxxxx Money and any interest
earned thereon shall immediately be returned to Buyer. Failure to provide written notice of termination within the time allowed
shall be deemed waiver and satisfaction of such contingency.
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f. Buyers
obtaining financing satisfactory to Buyer within sixty (60) days after execution of this Agreement. If Buyer is unable to obtain
satisfactory financing within the time allowed, Buyer shall have the right to terminate this Agreement provided written notice of
termination is delivered to Seller within the time allowed, and the Xxxxxxx Money and any interest earned thereon shall
immediately be returned to Buyer. Failure to provide written notice of termination within the time allowed shall be deemed waiver
and satisfaction of such contingency.
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Seller’s obligations
under this Agreement are subject to all of the following conditions having been satisfied:
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a. Buyer
must be acceptable to the Original Purchaser of the Bonds issued to finance Seller’s purchase of the real property in 1988.
All requirements of the bond documents, including that Buyer must assume the obligations of Seller under such documents, must be
met to allow the transfer of the property prior to prepayment of the bond obligations on April 1, 2006.
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Seller may acknowledge satisfaction or waiver of any of the foregoing
conditions, only by delivering written notice of satisfaction or waiver to Purchaser on or prior to the Closing Date. If Seller
does not acknowledge in writing the satisfaction of the foregoing conditions (or otherwise waive the same in writing) by such
date, then this Agreement shall automatically be deemed to be null and void, without action required of either party, and the
Xxxxxxx Money shall be returned to Purchaser and Seller and Purchaser shall thereafter be released from any liability or
obligation hereunder.
17. Casualty
Loss. If prior to closing the improvements on the Property are substantially damaged through no fault of
Buyer or Buyer’s inspection of the Property pursuant
to Section 14, Seller shall immediately notify Buyer, in writing of such
damage. Within ten (10) days of Buyer’s receipt of Seller’s notice Buyer may, at Buyer’s option, terminate this
Agreement pursuant to Section 20 below. If Buyer does not terminate this Agreement within said ten (10) day period, the Parties
shall fully perform their obligations under this Agreement, and Seller shall assign to Buyer Seller’s rights to insurance
proceeds for damage to the building, but not proceeds for Seller’s or Tenant’s personal property, business interruption,
or any other related losses, which Seller is entitled to receive on account of such casualty loss. If, prior to the Date of
Closing, the improvements on the Property are damaged less than substantially, Seller shall repair such damage, and the Parties
shall proceed pursuant to the provisions of this Agreement with the Date of Closing extended for a period of time not to exceed
thirty days. For purposes of this Section 17 the term “substantially damaged” shall mean damage that requires repairs
which cost more than $100,000.00. At the request of either Party, the Parties shall engage a real estate appraiser licensed in the
state in which the Property is located to determine the cost of repairing damage to the Property. Buyer shall select the appraiser
from a list of three appraisers which Seller shall prepare and deliver to Buyer within ten (10) days of the occurrence of damage
to the improvements located on the Property. Each Party shall pay one-half of the appraiser’s fee.
18. Condemnation. If
a public or private entity with the power of eminent domain commences condemnation proceedings against all of any part of the
Property, Seller shall immediately notify Buyer, and Buyer may, at Buyer’s sole option, terminate this Agreement pursuant to
Section 20 below. Buyer shall have ten (10) days from Buyer’s receipt of Seller’s notice to Buyer to exercise
Buyer’s termination right. If Buyer does not terminate this Agreement within said ten (10) day period, the Parties shall
fully perform their obligations under this Agreement, with no reduction in the Purchase Price, and Seller shall assign to Buyer,
on the Date of Closing, all of Seller’s right, title and interest in any award for land or building, but not any award for
personal property, business interruption, moving expenses, or any other related expenses, made or to be made in the condemnation
proceedings. Seller shall not designate counsel, appear or otherwise act with respect to any such condemnation proceedings without
Buyer’s prior written consent unless Buyer fails to respond within seven (7) days to a request for such written consent.
19. Assignment. Buyer
may not assign Buyer’s rights and obligations under this Agreement to a third party without the prior written consent of
Seller.
20. Default. If
either Party defaults in the performance of any of the Party’s obligations under this Agreement, the non-defaulting Party
may, after written notice to the defaulting Party, suspend performance of its obligations under this Agreement, and the rights of
the non-defaulting Party are as follows:
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a. terminate
this Agreement pursuant to Section 20; or
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b. initiate
a civil action to compel the defaulting Party’s specific performance of its obligations under this Agreement provided that
the non-defaulting Party commences such action within six (6) months of the Date of this Agreement. In any such
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action for specific performance, the non-defaulting Party may also
recover its reasonable attorney’s fees and costs. |
21. Termination
of this Agreement. Sections 16, 17 and 19 of this Agreement allow the Parties to terminate this Agreement
under certain conditions. The following procedures shall govern the exercise of termination pursuant to said sections:
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a. The
Party which desires to terminate this Agreement pursuant to one of the above-referenced Sections, must notify the other Party, in
writing, of its intent to terminate this Agreement.
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b. Said
notice must recite the Section of this Agreement that authorizes termination of this Agreement and shall describe the facts and
circumstances which justify termination under the referenced Section.
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c. Notice
of termination shall follow the procedures provided for in Section 24 below.
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d. If
the other Party disputes the right to terminate this Agreement, said Party must so notify both the Party requesting the
termination and Title, in writing, within three (3) business days of its receipt of the notice of termination.
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e. In
the case where the Buyer is requesting the termination, if Seller does not dispute Buyer’s right to terminate the Agreement,
Buyer shall execute and deliver to Seller a recordable quit claim deed conveying the Property to Seller, and upon the receipt of
the quit claim deed, Seller shall instruct Title to return the Xxxxxxx Money and any interest which the Xxxxxxx Money has earned
to Buyer. In the case where the Seller is requesting the termination, if Buyer does not dispute Seller’s right to terminate
the Agreement, Buyer shall retain the Xxxxxxx Money and any interest which the Xxxxxxx Money has earned as liquidated damages.
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f. If
the either Party disputes the validity of an attempted termination of this Agreement, either Party may initiate a civil action in
a court of competent jurisdiction to determine the status of this Agreement.
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22. Time. Time
is of the essence for all provisions of this Agreement.
23. Survival
of Terms. The Parties’ obligations under this Agreement and the representations and warranties which
the Parties have recited in this Agreement shall survive Seller’s delivery of a deed to Buyer and the closing of this
transaction.
24. Notices. All
notices provided for in this Agreement shall be in writing. The notice shall be effective as of the date two days after the Party
sending such notice deposits the notice with the United States Postal Service with all necessary postage paid, for delivery to the
other Party via certified mail, return receipt requested, or one day after deposit with a recognized overnight delivery service at
the address set forth in Section 1 above. The Party sending the
notice shall also mail a copy of the notice to the Parties’ via first
class United States mail at the addresses set forth below:
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Seller: |
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Xxxx Leasing
c/o Reg Xxxx Xxxx Stamping Company
00000 Xxxxxx Xxxx 0
Xxxxxxxxxx, XX 00000 |
25. Full
Agreement. The Parties acknowledge that this Agreement represents the full and complete agreement of the
Parties relating to the purchase and sale of the Property and all matters related to the purchase and sale of the Property. This
Agreement supersedes and replaces any prior agreements, either oral or written, and any amendments or modifications to this
Agreement must be in writing and executed by both Parties to be effective.
26. Governing
Law. This Agreement has been made under the laws of the state in which the Property is located and such
laws shall control its interpretation.
27. Broker
Representation. Seller has retained Northstar Partners as its broker and Buyer has retained Why USA Casa
Realty as its broker. Seller shall pay a commission based on the gross sales price to Northstar Partners at Closing. Except for
Northstar Partners, Seller and Buyer each represent, agree and warrant to the other that the representing party has not obligated
the other for the payment of any commission, and each agrees that to the extent any such obligation for commission exists, the
same shall be born by the party contracting for it separate and apart from this Agreement.
28. Attorney’s
Fees. Each of the parties will pay its own attorneys’ fees, except that a party defaulting under
this Agreement or any closing document will pay the reasonable attorney’s fees and court costs incurred by the non-defaulting
party to enforce its rights regarding such default.
29. Binding
Effect. This Agreement binds and benefits the parties and their respective successors, assigns, and
representatives.
EXHIBIT A
Legal Description
Those tracts or parcels situated in the County of Xxxxxx and State of
Minnesota described as follows:
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Xxx 0, Xxxxx 0, Xxxxxxx Xxxxxxxxxx Xxxx. |
